As soon as Congress goes into recess, Donald Trump will have the opportunity to remove special prosecutor Robert Mueller—unless Sen. Mitch McConnell, R-Ky., stops him.
What will McConnell do?
Our Constitution provides Trump with a simple two-step process to rid himself of the meddlesome prosecutor he so fears.
First, when Congress starts its August recess, Attorney General Jeff Sessions resigns, which Trump has been signaling him to do. Trump could fire Sessions, but for reasons explained below would rather not. Sessions cannot fire Mueller because he recused himself from the Russia investigation, in which he is entangled.
Second, while Congress is in recess, Trump appoints a new attorney general. A Trump toady can immediately take the oath of office and a minute later fire Mueller.
The instant attorney general replacement is possible because our Senate cannot give its advise and consent when it is in recess. The framers of our Constitution, in an era before jets or even trains, provided for that circumstance in the third clause in Article II, Section 2 of our Constitution:
“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”
Given Trump’s ease in finding unqualified people to fill high positions in our government, finding someone so craven that they would fire Mueller just so they can serve 18 months as our 85th Attorney General would be easy.
And firing Mueller would presumably just be part of reining in or completely shutting down the independent investigation into Russian interference in our presidential election and any involvement with the Trump campaign. It would also protect Trump from an inquiry into his more than three decades of business dealings with Russians, Russian mobsters and others, including money laundering, and perhaps other offenses.
One person has the Constitutional power to prevent Trump from getting rid of Mueller this summer — McConnell. The majority leader knows how to do it, too. He proved that last year.
All McConnell needs to do is keep the Senate in session. McConnell used his power to keep the Senate in session, at least technically, in 2016 to make sure that Barack Obama did not make a so-called recess appointment of Judge Merritt Garland to the Supreme Court after Justice Anton Scalia died last year.
McConnell had one senator show up each day to gavel the Senate into session and then promptly adjourn until the next day.
Trump could fire Sessions. But he has good reason to avoid that and instead pressure Sessions to resign.
Trump said Sessions was “very unfair to the president. How do you take a job and then recuse yourself? If he would have recused himself before the job, I would have said, ‘Thanks, Jeff, but I can’t, you know, I’m not going to take you.’ It’s extremely unfair, and that’s a mild word, to the president.”
Trump continued insulting Sessions this week, including a tweet just this morning attacking him for not pursuing an investigation of Hillary Clinton.
Why not just fire Sessions? Because if Sessions quits Trump can say he had no choice but to quickly fill our nation’s top law enforcement job, especially because he has said he does not respect the Deputy Attorney General, Rod Rosenstein, who appointed Mueller.
If Trump is forced to fire Sessions, however, his plan to get rid of Mueller would be obvious even to his supporters. The need for a new attorney general would be a problem created by Trump. Firing Sessions might even become an article in a bill of impeachment — obstructing justice by shutting down Mueller’s investigation.
The questions Americans should be asking are about loyalties and where they lie.
We know there are serious questions about the loyalties of Trump, who attacks American judges, lawmakers, journalists and intelligence agencies, but gratuitously lavishes praise on Vladimir Putin. Trump rejects the conclusion of American intelligence agencies that say Russia interfered in our elections last year to help Trump get to the White House.
Then there’s the super-secret intelligence Trump impulsively revealed to the Russian foreign minister, Sergei Lavrov, and Ambassador Sergey Kislyak when he met with them in the Oval Office on May 10. He also told them he fired James Comey as FBI director because Comey was digging into the Russian matters and would not back off. We know this because the Russians, not Trump, made it public. That is, Trump was candid with two Russian officials steeped in intelligence gathering, but not the American public.
Lavrov later said, after the G-20 meeting in Hamburg, Germany, that Trump said in private he accepted as truthful Putin’s statement that Russia did not interfere in the 2016 elections. So Trump values the word of a murderous autocrat who has said he wants to end democracy everywhere over the judgment of American intelligence officials.
We don’t know the full story of what Trump has done or what leverage the Russians may have on Trump and his extended family. We do know Trump’s first national security adviser, retired General Michael Flynn, has said he has a story to tell and will if he is granted immunity from prosecution.
The full story of what is going on here will remain hidden if Trump can stop Mueller, a former FBI director who knows how to run a diligent investigation, backed by subpoena power.
So where lie the loyalties of Addison Mitchell McConnell Jr.? Is the Kentucky Republican loyal to his political party? Or to our Constitution?
The answer to that question, on which nothing less than the fate of our nation may hang, may become apparent within a few days.